Interim Decision #1288

Interim Decision #1288

Martrer or Rros-Carri.Lo

In DEPORTATION Proceedings

A-13568545 |

Decided by Board Jume 12, 1963

An application under section 248, Immigration and Nationality Act, for change

of nonimmigrant status and the issues raised in the proceedings thereunder

are not within the jurisdiction of either the special inquiry officer or the Board

of Immigration Appeals. oO “

CHARGE:

Order: Act of 1952—Section 241(a)(9) [8 U.S.C. 1251(a) (9)]—Failed to

comply with conditions of status of agricultural worker under which

admitted to the United States.

A. total of 14 cases involving the same issues have been appealed

by counsel. This case will serve as a precedent for the disposition

of the others. To simplify the discussion and for administrative |

convenience, this case which the special inquiry officer handled in an

erder also disposing of two other cases (Rogelio Avila-Valdez —

A-13568544 and Jose Salud Guiterrez-Serrato — A-13569146) will be

considered separately.

Respondent appeals from an order of the special inquiry officer

finding him deportable upon the ground stated above. Voluntary

departure was granted. We shall reopen proceedings.

Respondent, a 26-year-old single male alien, a native and citizen of

Mexico, was admitted to the United States as an agricultural worker

on May 3, 1962 for a period ending June 14, 1962. Recontracts extended the period to December 20, 1962 (Ex. 4). For the purposes

of this opinion, as is explained later, we shall assume that by reason

of an agreement between the Republic of Mexico and the United

States (Ex. 7), the period was extended an additional 15 days to January 4, 1963. Respondent was given no further extension by the

Service yet remains in the United States. The Service charges that

the respondent is deportable because his failure to depart violated the

conditions of his admission. Counsel .contends that the respondent

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who had submitted an application for a change of his status, is legally

in the United States because his application was improperly denied ;

counsel also raises a question as to the applicability of the charge

in the order to show cause, and contends that the order to show cause

was prematurely issued.

The questions raised by counsel require a full statement of facts

- even though some of the facts are irrelevant in this deportation proceeding. Respondent was admitted to the United States as an agricultural worker under the Agricultural Act of 1949 as amended

(7 U.S.C. 1461-1468).1 On January 4, 1963, the respondent filed an

application (Ex. 5) with the District Director at Los Angeles, California under section 248 of the Act (8 U.S.C. 1258)? for a change of

his status from an agricultural worker to a temporary agricultural

worker described in section 101(a) (15) (H) (ii), 8 U.S.C. 1101(a)

1 Pertinent portions of the Agricultural Act of 1949,.as amended, follow:

Workers recruited under this title who are not citizens of the United States

shall be admitted to the United States subject to the immigration laws (or if

already in, for not less than the preceding five years or by virtue of legal entry,

and otherwise eligible for admission to, the Ynited States may, pursuant to

arrangements between the United States and the Republic of Mexico, be permitted to remain therein) for such time and under such conditions as may be

specified by the Attorney General but, notwithstanding any other provision of

law or regulation, ne penalty bond shall he required which imposes liability upon

‘any person for the failure of any such worker to depart from the United States

upon termination of employment: * * * (section 505, 7 U.S.C. 1464, as amended,

7 U.S.C. 1464, 1465 (Supp. III) )-

‘Workers recruited under the provisions of this title shall not be subject to the

head tax levied under section 2 of the Immigration Act of 1917 (section 506(e),

7 U.S.C. 1465, as aniended, 7 U.S.C. 1464, 1465 (Supp. ITT) ).

Nothing in this Act shall be construed as limiting the authority of the Attorney

General, pursuant to the general immigration laws, to permit the importation

of aliens of any nationality for agricultural employment as defined in section

507 [Agricultural Act of 1949], or to permit any such alien who entered the

United States legally to remain for the purpose of engaging in such agricultural

employment under such conditions and for such time as he, the Attorney General,

shall specify (section 509, 7 U.S.C. 1468, as amended, 7 U.S.C. 1468 (Supp. III) }.

7 he Attorney General may, under such conditions as he may prescribe, authorize a change from any nonimmigrant classification to any other nonimmigrant classification in the case of any alien lawfnily admitted to the United

States as a nonimmigrant who is continuing to maintain that status, except an

alien classified as a nonimmigrant under paragraph (15(D) of section 101(a)

falien crewmen], or an alien classified as a nonimmigrant under paragraph

(15) (C) or (J) of section 101(a) [alien in transit or alien coming as participant

in a State Department program] unless he applies to have his classification

changed from classification under paragraph (15) (C) or (J) to a classification

under paragraph (15)(A) or (15)(G) of section 101(a) [diplomat or representative of a foreign government] (section 248 of the Act).

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(15) (H) (ii)2 As required by regulation,‘ the application for a

change of status was accompanied by a petition made by an agricultural cooperative for the respondent’s services as a temporary agricultural worker (Ex. 6). On January 17, 1963 the District Director

returned the petition to the agricultural cooperative with a request

that a clearance from the State of California be submitted showing

that unemployed persons capable of performing the labor could not

be found in the United States (Ex. 6). Nothing further appears to

have been done with this petition. On January 18, 1963, the District

Director denied the application for a change of status on the ground

that respondent was not a nonimmigrant and therefore could not

change from one nonimmigrant class to another nonimmigrant class.

The reason given for finding respondent was not a nonimmigrant was

that the nonimmigrant class is created by section 101(a) (15) of the

Act, but respondent had not been admitted under this section: he had

been admitted under the Agricultural Act of 1949, as amended. The

decision also notified the respondent that he had 15 days within which

to appeal to the Regional Commissioner. On the same day the deci-

- sion was handed down, the District Director issued an order to show

cause formally commencing deportation proceedings against the respondent, and notifying him to appear for his deportation hearing

on January 29. The order to show cause was served by mail. On

January 25, 1963, the respondent filed an appeal with the Regional

Commissioner from the District Director’s denial of his application

for a change of status. (The deportation hearing was not held on

January 29th as scheduled.) On January 30, 1963, the Regional Commissioner dismissed the appeal on the ground used by the District

Director and on the additional ground that respondent had not been

the beneficiary of an approved petition (Ex. 5). On February 4, 1963

the respondent was notified that the hearing in the deportation case

had been rescheduled to February 12, 1963.

On the rescheduled date, the deportation hearing was held. The

Service established that the respondent had been admitted as an agricultural worker authorized to remain until December 20, 1962 and

that he had not departed after the terminal date. Respondent testified that on December 20, 1962, the terminal date, he had been employed by the Tamaka Growers, that an official of the camp requested

*In pertinent part the section relates to an alien “who is coming temporarily

to the United States to perform other temporary services or labor, if unemployed

persons capable of performing such service or labor cannot be found in this

country ;” ,

*In pertinent part the regulation requires that an application for a change of

nonimmigrant classification “shall be accampanied by an applieation on Farm

I-129B made by the alien’s prospective employer or trainer.” (8 CFR 248.3)

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him to remain for an additional 15 days. (A statement taken from

the respondent before the issuance of the order to show cause reveals,

that on December 28, 1962, he changed from one agricultural employer

. to another.) The special inquiry officer ordered respondent deported

on the charge in the order to show cause, and the appeal before us was

filed. .

On. appeal, counsel contends that the order to show cause was prematurely issued and is in violation of due process because it was issued

before the decision of respondent’s appeal to the Regional Commissioner from the District Director’s denial of his application for a

change of status. (It is also alleged that the Service arrested six respondents ignoring the fact that their appeals to the Regional Commissioner were pending and did not release them until after the order

to show cause had been served. The allegation of counsel is not contested by the Service. Whether or not respondent was in this group

is not clear; however, for the purpose of this order we shall assume

that he was.)

Counsel’s contention concerning the issuance of the order to show

cause will be dismissed. Enforcement of the immigration laws often

makes necessary, investigation and detention of aliens suspected to be

- in the United States iegally. The question as to whether there was

an abuse of these powers and unwarranted haste in the issuance of the

order to show cause is, in the absence of matters of duress and due

process, for the attention of the Service rather than the Board. No

matter of duress is raised. While a matter of due process is advanced,

it seems clear that premature issuance of an order to show cause would

not alone amount to a denial of due process. A similar matter was

involved in U.S. ew rel. Bilokumsky v. Tod, 263 U.S. 156 (1923).

Bilokumsky, an alien who had been ordered deported contended that

the deportation proceeding was void ab initio because there had been

a lack of probable cause for the issuance of the warrant ofarrest. The

court rejected the contention saying, “Irregularities on the part of the

government official prior to, or in connection with, the arrest, would

not necessarily invalidate later proceedings in ali respects conformable to law.” (263 U.S. at 158) There is no evidence here that the

later proceedings failed to conform to law.

We come thus to the issue of respondent’s deportability. Deportation is sought under section 241(a) (9) of the Act (8 U.S.C. 1251 (a)

(9)). The section provides for the deportation of an alien who:

was admitted as a nonimmigrant and failed to maintain the nonimmigrant

status in which he was admitted or to which it was changed pursuant to section

248, or to comply with the conditions of any such status ; **+

Although the section speaks of an alien admitted as a nonimmigrant,

neither the statement of law in the order to show cause nor the factual

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allegation of the order to show cause claims that respondent was admitted as a nonimmigrant: the statement of law is that respondent

was admitted “in a temporary status, to wit, an agricultural worker

under Title V of the Agricultural Act of 1949, as amended,”; the factual allegation is that respondent was “admitted in the temporary

status of an agricultural worker”. The special inquiry officer, assuming without discussion (the issue had not been raised before him)

that an agricultural worker was a nonimmigrant as described in section 241(2) (9) of the Act, found the charge sustained on the ground

that the respondent. had clearly remained in the United States longer

than the period for which he had been authorized to remain.

We shall reopen proceedings so that the assumption made by the

special inquiry officer may be examined since the record raises the

question as to whether a temporary worker admitted under the Agricultural Act is a nonimmigrant and whether one who is not a nonimmigrant is deportable under section 241(a)(9). As counsel (who

contends that respondent is a nonimmigrant but not a deportable one)

points out, the Service, in the proceeding for the change of status took

the position that respondent is not a nonimmigrant *, yet in this proceeding the Service proceeds on the theory that respondent is a nonimmigrant. How can the respondent be a nonimmigrant for one

purpose and not for another in matters as vital as those involved?

Even more to. the point is the fact that section 241(a) (9) of the Act

on which the deportation order is based appears by its terms to relate

to aliens whose status can be changed by section 248 of the Act. The

respondent has been found by the Service in the change of status proceeding to be an alien whose status cannot be changed by section 248 of

the Act. Is section 241(a) (9) of the Act broad enough to include an

alien whose status cannot be changed by section 248 of the Act? These

issues require an answer‘, for if the respondent is not deportable

under the section of law on which this proceeding is based, he cannot

be ordered deported in this proceeding merely because he appears to be

*'The order of the District Director denying the application for a change of

status reads: .

An alien who was admitted to the United States as an agricultural worker

under the provisions of the Agricultural Act of 1949, as amended, not having

acquired a nonimmigrant classification under section 101(a)(15) of the Immigration and Nationality Act is ineligible for a change of nonimmigrant status

under section 248 of the Act (fatter of C—, & I. & N. Dec. 419).

The Regional Commissioner in affirming the denial] stated: “The alien may

not be considered as a nonimmigrant and, therefore, is not in a nonimmigrant

classification.” ;

*The issues have apparently not been the subject of adjudication by this

Board ; however, see Motte? of G—/—, 61. & N. Dee. 491.

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deportable under a section which has not been lodged.’ Due process

requires that deportation be accomplished only on a ground provided

by law, that the alien be notified of the ground so that he can make his

defense, that a record be created, and that the record reveal that the

Service has established in a fair hearing, by reasonable, substantial, and

" probative evidence, that the alien is within that ground.

An issue which may come up aguin al the reopened hearing is the

contention of counsel that the provisions of a standard work contract

(Ex. 7) which provide that the services of an agricultural worker

may be utilized for o period of not more than 14 days after the expiration of his contract, constitutes an extension of legal stay for the

15 days if the option is exercised. While this contention appears to

be arguable on the basis of what little there is in the record, we see

no need for attempting to decide or for developing the issue since

deportation is sought not for what occurred within the 15-day period

following the termination of the contract, but for the failure to depart

from the United States even after the 15-day period. (In respondent’s particular case, we note that on December 28, 1962, before the

expiration of the 15-ddy extension, he left the employer who had asked

him to continue.) However, development of this matter is left to the

discretion of the special inquiry officer.

We have reserved until now comment on the issues raised by counsel

concerning respondent’s attempt to change his status from an agricultural worker to a nonimmigrant worker. ‘The proceeding to obtain

the change of status and the issues raised in the proceeding—the

propriety of the denial of the application for the change of status,

the necessity for filing a petition from the employer in connection

with the application, the propriety of using state permission to employ

agricultural workers made in collateral cases—are not within the jurisdiction of either the special inquiry officer or this Board. The initial

decision on the application for a change of status is for the District

- Director (8 CFR 103.1(£), 108.2-8, 214.4, Form I-129B .(note instructions on Form) ; the appeal is to the Regional Commissioner (8 CFR

108.1(a)). Clearly, neither the special inquiry officer nor the Board

has jurisdiction over the proceeding (8 CFR 3.1; see Matter of Malkdesman, Int. Dec. No. 1090). Since this is so, it follows that comment

on the issues raised as to the change of status proceeding would be

inappropriate.

"Counsel suggests that if the respondent is deportable at all, the proper

charge would be under section 241(a)(2) of the Act (8 U.S.C. 1251(a) (2))

which requires the deportation of an alien who is in the United States in violation of the Immigration and Nationality Act or “any other law of the United

States”.

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ORDER: It is ordered that the outstanding order of the special

inquiry officer be and the same is hereby withdrawn.

It is further ordered that proceedings be reopened for purposes not

inconsistent with those stated in our order and for such other purposes

as the special inquiry officer may deem appropriate.

It is further ordered that the decision of the special inquiry officer

be certified to this Board.

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